‘Just Plain Dirt and Nothing Else’?

See: Standing Committee of Attorneys-General, Australia, Communique (10 December 2010); Senate Legal and Constitutional (‘SL&C’) Affairs Reference Committee, Parliament of Australia, Review of the National Classification Scheme: Achieving the Right Balance (2011); ALRC, Classification – Content Regulation and Convergent Media: Final Report, Report 118 (2012).

See McGlynn Clare Ward Ian , ‘Pornography, Pragmatism, and Proscription’ (2009) 36(3) Journal of Law and Society 327.

Classification (Publications, Films and Computer Games) Act 1995 (Cth) (‘Classification Act’) s 7(2). A ‘film’ is defined as including ‘a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced (together with its sound track), but does not include: (a) a computer game; or (b) an advertisement for a publication, a film or a computer game’: Classification Act s 5.

Classification Act s 9. From 2000 to 2012, both the Guidelines and the Code were updated a number of times. However, these amendments are not significant to the content considered in this article.

Classification Act ss 10, 41, 43, 44.

Classification Act s 11.

Code 2005 cl 1.

With increasing levels of discretion and justification by context permissible in higher classifications: Guidelines 9–12.

Code cl 3. Such non-sexually explicit films may also be classified RC if they have a ‘very high’ impact, eg fetish content in Classification Review Board (‘Review Board’), The Human Centipede II (Full Sequence) Classification Decision, 28 November 2011

See, generally, the Classification (Publication, Films and Computer Games) (Enforcement) Act 1995 (ACT); Classification (Publication, Films and Computer Games) Enforcement Act 1995 (NSW); Classification of Publications, Films and Computer Games Act (NT); Classification of Films Act 1991 (Qld); Classification (Publications, Films and Computer Games) Act 1995 (SA); Classification (Publication, Films and Computer Games) Enforcement Act 1995 (Tas); Classification (Publication, Films and Computer Games) (Enforcement) Act 1995 (Vic); Classification (Publication, Films and Computer Games) Enforcement Act 1996 (WA).

See ALRC above n 1, 259

Material prohibited under Customs (Prohibited Imports) Regulations 1956 (Cth) r 4A(1A)(a) is in line with the RC classification: Vokalek v Commonwealth of Australia [2008] SASC 256.

Classification (Publication, Films and Computer Games) Enforcement Act 1996 (WA) s 62; Classification Act Part 10.

Adultshop.Com v Members of the Classification Review Board [2008] FCAFC 79, [47].

Review Board, Classification Review of '9 Songs'’ (17 January 2005), 7.

Ibid 6. cf Classification Council, Annual Report of the SA Classification Council (2005–2006) app B. Here the SA Classification Council (empowered by state legislation to review decisions of Commonwealth Boards) reclassified 9 Songs as X18+ for South Australia. While the Council conceded the film had ‘artistic merit’ they considered its scenes of actual sexual intercourse to be ‘direct’, ‘frequent, detailed and explicit’, and thus ‘go beyond’ the R18+ category by including ‘the sort of material most often found in the X18+ category’.

Review Board, Classification Review of ‘Viva Erotica’ (6 December 2006), 7.

National Classification Code 2005 cl 3.

Review Board, Classification Review of ‘Dreamquest’ (8 December 2000). The Review Board identified, at [5.5], that: ‘At 103 minutes there is a scene where feet are seen walking in the prison cell corridor as a male walks up behind a guard, raises a club. A thump is heard, and the guard falls having been rendered unconscious.’ The Review Board 'agreed with the decision of the Classification Board in that it found violence to be present in the scene at 103 minutes of the film. The Guidelines for the X category do not permit depictions of violence. The Review Board considered that it was therefore bound to classify Dream Quest RC

See, eg, the decision in Review Board, Classification Review of ‘EuroAngels Hardball 6- Anal Maniac’ (8 December 2000), [5.2]-[5.3] where the Review Board found the phrases ‘you're just a fuckin' bitch’, ‘fuckin’ slut you are' and variations ‘constituted sexually assaultive language’ that justified an RC classification.

See ALRC, above n 1, 263. Interestingly, the fetish in question need not even exist outside the fictional world of the film. The Review Board classified The Human Centipede II as RC partly because it contained the depiction of the main character's fetish for creating a ‘Human Centipede’: Review Board, The Human Centipede II (Full Sequence) Classification Decision, 28 November 2011

See the list of relevant Acts, above n 10.

Hostel (2005), Saw (2004) and their sequels are exemplars of movies that fall within this subgenre.

Arguments that general community standards in Australia would be accepting of sexually explicit material within the R18+ classification in the context of a stereotypical pornographic film were rejected at all levels of decision-making in the case of Viva Erotica: Review Board, Classification Review of ‘Viva Erotica’ (6 December 2006); Adultshop.Com v Members of the Classification Review Board [2007] FCA 1871; Adultshop.Com v Members of the Classification Review Board [2008] FC AFC 79.

Although there may be individual cases where this occurs, eg the infamous Linda Lovelace and the filming of Deep Throat (1972), only the more radical sex-negative feminist positions would hold this an intrinsic part of all such filming.

Indeed, the threat of the slippage between violent sex as fantasy and reality is one of the key planks in anti-pornography arguments: See McGlynn Ward , above n 2, 332.

Dalton Derek Schubert Catherine , ‘When Classification Becomes Censorship’ (2011) 20(1) Griffith Law Review 31, 63.

These factors have been found to each be individually sufficient for a commercial pornographic film to be classified RC: Review Board, Classification Review of ‘EuroAngels Hardball 6- Anal Maniac’ (8 December 2000), [5.4]- [5.5].

Huppin Mark Malamuth Neil , ‘The Obscenity Conundrum, Contingent Harms, and Constitutional Consistency’ (2012) 23(1) Stanford Law & Policy Review 31, 38.

Ibid.

See ALRC, above n 1, 276.

See, eg, Brand Jeffrey , A Review of the Classification Guidelines for Films and Computer Games (OFLC, 2002), 17.

Pirate Party Australia, Submission CL1588 to the ALRC, National Classification Scheme Review, 5.

Ibid 6.

Though they found sexually explicit clips containing vomit and enemas were offensive to the majority of participants: Urbis , Community Attitudes to Higher Level Media Content: Community and Reference Group Forums Conducted for the ALRC (24 April 2012) <http://www.alrc.gov.au/publications/community-attitudes-higher-level-media-content-community-and-reference-group-forums-con>, 47–50.

A recent study showed 1.8% of sexually active Australians had engaged in sadomasochistic activities in the previous year: Richters Juliet , ‘Demographic and Psychosocial Features of Participants in Bondage and Discipline, “Sadomasochism” or Dominance and Submission’ (2008) 5(7) Journal of Sexual Medicine 1660 If such activities included bondage, spanking or ‘violence’ they would be excluded from the X18+ classification and fall into RC.

See the discussion in Kafka Martin , ‘The DSM Diagnostic Criteria for Fetishism’ (2010) 39(2) Archives of Sexual Behavior 357 of the diagnostic criteria found in the Diagnostic & Statistical Manual of Mental Disorders (4th Edition, Text-Revised).

Civil Liberties Australia, Submission CL2466 to the ALRC, National Classification Scheme Review, 6.

Sparrow Jeff , Money Shot: A Journey into Porn and Censorship (Scribe, 2012), 73.

Review Board, Classification Review of ‘White Men Can't Iron-Butt Their Putters Sure Work’ (8 December 2000), [6.4].

See Sparrow , above n 39, 66.

See Dalton Schubert , above n 27, 61.

R v Close [1948] VLR 445, 446. The context for this quote (which gives this article its title) was a case concerning a prosecution for the historical offence of ‘obscene libel’ due to the publication of a salacious novel. Justice Fullagar noted that a jury in such a case could be directed by the presiding judge to consider the following: ‘Do you think that the publication now before you is one in which these matters are dealt … with whatever frankness, cleanly? Or do you think that there are passages in it which are just plain dirt and nothing else, introduced for the sake of dirtiness and from the sure knowledge that notoriety earned by dirtiness will command … a ready sale?’